Andrew Bernstein and Andrew Shaughnessy featured in CBA National magazine

The $500-million doctrine

The changing nature of Canadian patents is stirring debate and conversation–in particular, for pharmaceutical companies. Partners Andrew Shaughnessy and Andrew Bernstein were sought for comment on the subject in the Canadian Bar Association National Magazine. Below is an excerpt of the article.

Andrew Shaughnessy and Andrew Bernstein, two patent lawyers at Torys LLP, believe that the ambiguity surrounding the promise doctrine is worth being clarified. They find it “a pity” that the Supreme Court declined to hear the Zyprexa appeal.

"Science and technology have evolved so quickly that legislation and reforms couldn’t follow. The way the law is applied now raises several problems."

“Any case that touches utility is a significant case,” they say. Although they believe that the courts seem to be coming back to some kind of balance—albeit slowly—it still remains that the “promise doctrine” and the lack of better-defined patent validity tests could have unfortunate consequences.

“Science and technology have evolved so quickly that legislation and reforms couldn’t follow,” say Shaughnessy and Bernstein. “The way the law is applied now raises several problems. Innovators and people who do business and who want patents to protect their research and investments are entitled to predictability. We need to ask ourselves whether these rules are serving our policy purposes. If they don’t, then we should amend them.”